GNCTD and Ors. v. Bimlarani

1. The petitioners have approached this court challenging the order dated October 24, 2Ol[1] passed by the Central Administrative Tribunal' Principal Bench, New Delhi in O.A.N o.197712010 whereby the Tribunal has directed the petitioners to identiff a vacant Group.c post and take action to regularize the respondent ignoring that she is age barred'

2. The brief facts are the respondent was engaged as a Typist in the Delhi Sociar werfare Board on Jury 11, 1990. she worked as a Typist till July 31, 1S90. Latet on she joined the post of office clerk at a hostel for Deaf managed by All India Federation of the Deaf on March 12,l99I' 3.onSeptemberll,lgg5shewasengagedasaTypistcumClerkin Voluntary Action Bureau (VAB) wlrich is a special project vehicle for the purpose of ensuring proper implementation of family counselling centres" The engagement was on a temporary basis on a payment of t16001- as a consolidated salarY.

4. When a post of Computer Operator became available in the State I { {l- W.P(C) No.8986/2011 Page 1 of[7] 2013:DHC:7488-DB \.I l)/ Board,tobefilledoncontractbasiswithmonthlyhonorarium,the respondentresignedfromherpostasLDCcumTypistandwasengagedas ComputeroperatoronaconsolidatedhonorariumfromNovember2Q0T,ln the office of Delhi Social Welfare Board'

5. The respondent made a representation dated october 05, 2009 requesting regular ization of her services as a computer operator' The representationwasrejectedvideorderdatedDecembet14'2009whereinit was the case of the Board that Board cannot appoint her to any vacant post' Herappointmentwouldviolaterulesandproceduresasshe.wasnotan employee of the Board having worked as a Typist in the voluntary Action. Bureau Project of the social welfare Board on consolidated salary upto

2007.

6. Therespondentchallengedtherejectionofherrequestfor regularization before the Tribunal by filing o'A'No'1g7712010' The case of therespondentbeforetheTribunalwasthatshehasbeenworkingLDCcum Typist with the respondent organization since September 11, |995 and now she has been working as computer operator since Novembet 2007 ' she had pleaded compassion, inasmuch as, according to her she has been deserted by herhusbandandshehastomaintainhertwochildrenwithpartlyamountshe.isgetting.]fromthestateSocialWelfareBoard.Shehadalsosought t relaxation of rules for department candidates opto 42 years' She also states that at the time of her engagement as LDC cum Typist in the year 1995 she was of 37 years of age and was etigible for regular appointment to the post ofLDC.Shehadpleadeddiscriminatiorrinasmuchas2personswhowere over-agedhavebeenrcgu|arizedwiththepetitioners.Reliancewasplaced onbehalfoftherespondentonthejudgmentreportedasAlR2010sC25ST as also on the judgment rePorted as I w.P(C) No.8986/2011 Page[2] of 7 2006 (6) SCC 3t0 Mineral lixprcra+Pr! '-utv"'*"'"'" -"-' -' Mineral Explo.ratiqn Cqrporation L!4. & Anr. Thp petitioners on the hand had submitted that the engagement of the respondent was on contractual basis and the rules do not permit relaxation of age who was of 49 years of age on the date of her engagement as computer operator' Taking all these facts into consideration the respondent authority was constrained to reject her representation which was in conformity with the provisions of ',.j law.

7. The Tribunal vide para 6 of the impugned order allowed o'A'.{: reasoning as under:-

the sanction of the post of compu_ter operator on a regular scale,therespondentsshoutd.identifyanyvacantpostin Group-Cmiiisterialorlowercategorywhichhaseither fallen 'io;'ooo o' is tikely to become vacant on account of attrtttoi of: s'taff and take action to regularize the applicant' It may be"notid that the present age o{the applicant will not be a bar ?o,-t,,* regutirization in view of the fact that the issue,snotoffirsttimedirectrecruitmentbutof regularization;f i candidate who has been working for more rl*; io yiars with them. It is hoped that respondents wouldtakeactionasper-th,o7o,,'aiddirection.Incaseof ouombltity---of suitible vaclncy and in action of the respondent to regularize the applicant against such post, the applicant is given liberty to uriis the matter to the notice of this Tribunal for appropriate diiection. The o.A. is allowed in terms of thl atriittois as aforesaid' No costs'" \ t I Page 3 of[7] -t \q g. It is contended by the learned counsel for the petitioners that the engagement of the petitioner as a computer operator was on contractual basis and on consolidated salary. She is overage and her case cannot be considered for a regular appointment. She.would submit that the petitioners have been benevolent, engaging the respondent as and when opportunity had arisen. she would also submit in view of.the judgment of the Supreme court in 2006 (4) SCC I Segeta\v, state qf Karnatalm v' uma Devi the respondent cannot be regularized. She would also submit that even her engagemen]^.inVABwasonsympatheticgroundaftersheexceededtheage limit of 27 years as was required by the Rules' The learned counsel for the petitioners would submit that the petitioners would continue to engage the respondent as long as the petitioners are in need and further she would not be replaced by a fresh contractual appointee' g. on the other hand the learned counsel for the respondent would justiff the order of the Tribunal'

10. We note that the initial appointment of the respondent was when she was 37 years of age. She was being engaged in one capacity or the other' taking a compassionate view. We find, at least nothing on record' that she has been engaged without the process of selection. Even her last engagement as a cou.lputer operator in the yeat 2007 was on contractual and consolidated salary. As a contractual employee the respondent has no right to be engaged in perpetuity. The reliance placed on behalf of the respondent on the judgment of the Supreme court in M.L'Kesari's case (supra) is misplaced. In the said judgment the supreme court had dealt with para 53 in(Jma Devi's case (suPra)'

11. In para 53 in (Jma Devi's case (supra) the supreme court held as under:- -l I I Page 4 of[1] / t' "5i. One aspect needs to be clarified' There may be cases;;;r; turigak, appointments (nit iuesal -?ppointments) as ' explained in S.V.- No'oyo*ipq n N \!'yaonno- 1'! B.N. Nagarloion and "f""'d'to'in po'o 15 above' of duly qualified p""on' in duly sanctioied vacant posts might have been made and the employees-halte continued to work for ten years or more but without the intervention of orders of the,ouri, oo i[7] t'tUunals' The quest-ion of regularization of the r"*i,"' oJ'u'ch employees may have,to be considered on merits;;;; itglr, o.it e-principles, s.ettlld by this C,oyrt in the cases above '"f""ia tu -and in the light of -this judgment. In that context' the (Jnion of India' the State Governments and their instrumentalities should take steps tot?gularizeasaone-timemeasure,theservicesofsuch irue{ularly appointed, who have worked for ten years or moreinnty*ntctiontedpostsbutnotundercoveroforders of the,orii, "' if tribuiats and should further ensure that regular recruitments are undertaken to fiIl those vacant sanctionei posn that require to be fitted up' in cases where tumporary employees or daily wagers are being now employed. The process. must f,e set in motion within six months from this date"" |2.InparaTofM.L.Kesari,scase(supra)theSupremeCourt.culledout the conditions for applying para 53 of (Jma Devi's case (supra) and we reproduce pataT of the M'L'Kesari's case (supra):- "7. It is evident f'o* the above that there is an en:eption to the general principles !g!i":t 'regularization' enunciatei- t, uil"det p)' 'f th' following conditions are fulfi'Iled: (il The employee concerned should have worked for l0 years o, *ir"'in duly sanctioned post without the benefit or protection of the interim order of an[1] clourt or tribunal' In otherwords,theStateGovernmentoritsinstrumentality should i"u'' "iploy'd the employee -and continued him in service voluntirily and continuously for more than ten years. \ --j u i Page 5 of[7] tb.,{

(ii) The appointment of suc-h employee should not be illegal, even f frigia'' Whuru the appointments -are not made or continued zgainst sanctioned posts or where the persons appointed ao not possess the prescribed minimum qualifications,theappointmentswillbeconsideredtobe iltegal. But whe'"'ih" person employed possessed the pricribed qualificationi and was working against sanctionetd posts, but had been selected without undergoing the process of open competitive selection' such appointments ari considered to be irregular'"

13. we note the prayer sought by the respondent in the o'A' is to regularize.her as LDC. We find that the respondent was engaged as LDC cum Typist in vAB from which post she had resigned and took up the engagement as computer operator in the month of Novembet 2007' In other words her last engagement as a Computer Operator had coil]menced in the month of Novemb et 2007. She has not fulfi|led 10 years of engagement as a computer operator as on date. Further from a reading of para 6 of the impugnedorderitisnotedthatthepostofComputeroperatorisnota regular post. In fact the Tribunal has called upon the petitioners to identiff a vacant post in Group 'c' ministerial or lower category whichever is either vacant or is likery to become vacant on account of attrition of staff and take action to regularise the respondent. In other words the present engagement.; st a sanctioned post. If that being so even of the resPondent was not agam this condition has not been fulfilled by the respondent in the case in hand' The position of law is well settled in (Jma Devi's case (supra) wherein para 47 the Supreme Court has held as under:- ' "47. When a person enters a temporaTy emplllment orgetsengagementasacontractualorcasualworkerand the,rgog"irnt is not based on a proper selection as,"rogrirJd by the relevant rules or procedure, he is aware of the,orriq,'nces of the appointment being temporary' casual or c}ntractual in nature. Such a person cannot \ I, t Page 6 of[7] { IT invoke the theory of legitimate expectation for being' confirmedinthepostwheianappointmenttothepostcould be made only by following o piip"' pro.cedure for selection and in concerned cases' ti 'intufuofion with the Public ServiceCommission'Therefore'the-theoryoflegitimate expectationcannotbesuccessfullyadvancedbytemporaf!' contractualorcasualemployues..Itcanno^talsobeheldthat the State has held out any promise while engaging these persons either to continu'' th"* *'h"" they are or to make thempermanent.TheStatecannotconstitutionallymake suchapromise.Itisalsoobviousthatthetheorycannotbe involredtoseekapositivereliefofbeingmadepermanentin the^Post." '

14. In view of our conclusion above, we set aside the impugned order' we do so by taking on record the statement made by the learned counsel for the petitioners, that the services of the respondent shall be continued as long as there is work and further she would not be replaced by a fresh contractual appointee

15. We allow the writ petition in terms of the above without any order as 1-;x4-s-qsQ (PRADEEP NANSRAoG) JUDGE lr I l\I J YtW (V.KAMESWARRAO) JUDGE a \ to costs.